EU Advocate General Says ISP Filtering To Block Infringement Violates Fundamental Rights Charter
from the nicely-said dept
The court order would apply in abstracto and as a preventive measure, which means that a finding would not first have been made that there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.Nice to see more court systems recognizing this. This was the same point that was key to the iiNet ruling in Australia. Many defenders of mandatory filtering seem to think that it's "obvious" what's infringing and what's not. Yet, as has been seen, time and time again, that's not the case at all. Demands for aggressive filters assume that copyright infringement is something that is clear and obvious, rather than something established by a court ruling. Thankfully, the European Court of Justice's Advocate General seems to recognize this key point.
On top of that, he points out that such a required filter on Scarlet would be way too broad, in that it would also impact many people not a party to the case, or not even under the jurisdiction of Belgian law:
In particular, the Advocate General points out that the court order would have a lasting effect for an unspecified number of legal or natural persons irrespective of whether they have a contractual relationship with Scarlet and regardless of their State of residence. The system must be capable of blocking any file sent by an internet user who is one of Scarlet’s customers to another internet user -- who may or may not be one of Scarlet’s customers and who may or may not live in Belgium -- where that file is thought to infringe a copyright managed, collected or protected by Sabam.From that, he concludes:
The installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.In other words, such filters... violate fundamental rights. The various countries (hello Netherlands) pushing for such filters might want to pay attention.
Now, this isn't a final ruling. It's basically just the recommendation from the Advocate General to the court on how it should rule. Hopefully, the court pays attention.
Post updated to reflect that it was the "fundamental" rights charter, rather than the "human" rights charter. Sorry for the mistake.